Ruling throws MVC housing jurisdiction into flux

A recent ruling by the Massachusetts Housing Appeals Committee (HAC) has thrown the Island’s governing guardrails for large affordable housing developments into uncharted territory. 

The ruling, issued on Tuesday, April 21, deemed that the Martha’s Vineyard Commission (MVC), the regional regulatory authority that has reviewed large housing developments for decades, is a “local board.” This categorization essentially pushes out the commission from making major decisions on projects proposed under a state housing statute called Chapter 40B. 

It also granted constructive approval for Edgartown Gardens, one of the developments proposed by William Cumming of Atwood Co. LLC, which was unanimously denied by the MVC in October. 

“They never had that authority to make that decision,” Jay Talerman, attorney for Cumming, said.

Cumming and Talerman brought their concerns to the HAC, leading to this ruling and other open suits. The approval for the project, HAC stated, was due to the Edgartown zoning board of appeals failing to hold a hearing for Edgartown Gardens, the up-to-60-unit Chapter 40B project proposed to be built near the Edgartown Triangle, within 30 days after a comprehensive permit application was submitted in 2024. 

“This is about the law,” Cumming told The Times.

The ruling diminishes the previously established role of the MVC, as the evaluation of 40B developments has been a consequential part of what it does, and MVC’s knowledge of the state law has informed other efforts by the regional planning group, including the drafting of Housing Production Plans for all six towns. 

The HAC decision also runs counter to a ruling by Massachusetts Superior Court more than 20 years ago that ruled the MVC had jurisdiction over all 40B projects. In the 2003 case, the MVC was deemed to not be a local board.

“We believe that the case was wrongly decided by the HAC,” the executive director of MVC, Adam Turner, told The Times. “We’re going to file an appeal.”

The 40B housing statute allows developers to curb local zoning regulations to build housing more easily, as long as 25 percent of the project is made up of affordable units that are at or below 80 percent of the area median income. It’s also regarded by state legislators as a tool to ensure that at least a portion of developments are affordable. 

The MVC has acted as a buffer for the Vineyard, where there are a finite amount of land to build on, wetlands and environmental considerations, and wastewater constraints. All of those factors are considered when the MVC weighs the benefits and detriments to large developments, but it’s not clear whether the towns, whose zoning boards would take on these proposals in lieu of the MVC, would weigh them in the same way. 

“What the towns could benefit from is the due diligence that the MVC does when reviewing these, because they don’t really have the same capacity with staffing,” Philippe Jordi, executive director of the Island Housing Trust, a nonprofit that has built multiple 40B projects, told The Times. 

If the responsibility falls to the town boards for large housing developments, as is the case in other Massachusetts municipalities, developments with a quarter of affordable units could be much more easily approved. 

Chapter 40B, also known as the Massachusetts Comprehensive Permit Act, was created in 1969 to ensure that affordable housing would be built amid a national shortage of units and a boom in development. 

The statute is also tied into the subsidized housing inventory, a way for the state to track the amount of affordable units in municipalities. Since the 1960s, the issue of affordability has significantly worsened across the nation. The Island has not been immune. 

“[The Vineyard has] one of the most expensive housing markets in the country,” Cape and Islands State Sen. Julian Cyr told The Times. “The reality is that most Islanders can no longer afford to buy market-rate housing.”

“I have been in touch with the MVC regarding the ruling, and will be following litigation closely,” Cyr said. 

He added that the challenge on the Vineyard is that market-rate units rarely get purchased by year-rounders. “Almost any new development that isn’t either through an affordable housing program or an attainable housing program is going to be out of reach of Islanders,” Cyr said.

If it stands, the decision by the HAC could lead to increased development on the Island, since it streamlines approval for Chapter 40B proposals past the checks and balances that the MVC has in place. 

The MVC is also a unique institution in Massachusetts: Even the Cape Cod Commission, which oversees all 15 towns in Barnstable County, doesn’t approve or deny 40B projects. 

But on an island grappling with a crisis of affordability, with only Aquinnah having met the 10 percent threshold of having its housing stock consist of affordable units, or subsidized housing inventory, that’s required by the state, some developers say that having too many checks and balances is an unnecessary deterrent. 

“We have a situation that’s a disaster in the commonwealth, and we need to address that,” Cumming said regarding housing affordability. Cumming was born on the Island, and has proposed two large 40B projects thus far.

Developers of the project argued that the MVC was a local board because it did not actually grant permits. Permits are still granted by the zoning board of appeals of whichever town the project is proposed to be built in. 

So far, developments deemed to have a widespread impact have been deferred by towns’ zoning boards of appeals to the Martha’s Vineyard Commission.

But the HAC noted that the MVC receives municipal funding to operate, and that the materials it reviewed in its hearings, such as site plans and landscaping, were what a zoning board would look over. Additionally, there isn’t a bylaw regarding Chapter 40B projects in the MVC Act, which is an enabling act that outlines the role of the MVC. 

“To exempt the MVC from the definition of ‘local board’ would retain a form of local impediment to the development of affordable housing that the comprehensive permit act sought to eliminate, leaving the MVC with ‘effective veto power over proposed affordable housing,’ which is ‘wholly incompatible with the purposes of the comprehensive permit act,’” the committee’s analysis reads in part.

Not long after the Edgartown Gardens rejection, the other development by Cumming, Green Villa, came across its own barrier in January. The Green Villa project had been undergoing review with the Oak Bluffs zoning board of appeals following a ruling by the state housing appeals committee that the town had not reached its subsidized housing inventory in 2024. 

Board members initially expressed support for the iteration of the project they saw after a series of workshops. But a procedural issue occurred, in which the MVC didn’t approve the project, and the applicants were unwilling to extend the amount of time needed for a draft decision. Since the board couldn’t issue a comprehensive permit without MVC approval, the project was effectively denied. 

In municipalities without a regional body like the MVC, the developer of a proposed 40B project goes to a state subsidizing agency, like MassHousing, first. This prompts a 30-day commenting period for the town the project is in. At this point, abutter and community members can submit letters. Then the comprehensive proposal is submitted to the local zoning board of appeals (ZBA) for approval, opening up another 30-day comment period before a hearing is held. After that, there’s a 180-day window before the ZBA approves, denies, or approves with conditions, the project. 

The commission still has an opportunity to appeal the housing appeals committee’s decision, with a conference scheduled 30 days after the ruling’s issuance date, and there is lingering litigation over the project in Dukes County Superior Court and Massachusetts Land Court concerning similar issues. But Talerman said the courts will need to take into consideration the state’s ruling when making a decision. He also expressed confidence that Edgartown Gardens will move forward. 

“The train has left the station, and it’s a foregone conclusion, in my opinion, that the Edgartown Gardens has the requisite approvals under 40B,” Talerman said.

Still, Talerman assured The Times that this doesn’t mean the developers want to steamroll through the town. He said despite the “highly charged dispute,” his clients see the town and the commission as important partners in developing a successful project.